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TPR – Right to Meaningful Participation – Lack of Objection

Veronica K. v. Michael K., 2012AP197, District 1, 10/10/12

court of appeals decision (1-judge, ineligible for publication); case activity

Michael K., incarcerated at the time of this TPR trial, appeared by audio-video hookup. He argues that his due process right to meaningful participation, State v. Lavelle W., 2005 WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698, in light of his numerous contemporaneous complaints he couldn’t hear the proceedings. Because trial counsel counsel “never asked the trial court to assess whether Michael K. was able to meaningfully participate in the trial …, we analyze the Record in an ineffective-assistance-of-counsel context Michael K.’s appellate contention that he could not meaningfully participate,” ¶9. The court concludes that, taken either singly or conjointly, the asserted instances of inability to hear don’t establish prejudice:

¶11      As we pointed out in Lavelle:

[A]ny alternative to a parent’s personal presence at a proceeding to terminate his or her parental rights must, unless either the parent knowingly waives this right or the ministerial nature of the proceedings make personal-presence unnecessary, be functionally equivalent to personal presence: the parent must be able to assess the witnesses, confer with his or her lawyer, and, of course, hear everything that is going on.

Lavelle, 2005 WI App 266, ¶8, 288 Wis. 2d at 513–514, 708 N.W.2d at 702–703. Although, as we have seen, there were times when Michael K. had trouble hearing what was said, those instances were relatively few and the trial court and the lawyers immediately fixed things. …

¶12      Taken either separately or together, Michael K. has not shown how he was prejudiced either by his occasional difficulty in hearing or the occasional breakup of the audio. SeeState v. Thiel, 2003 WI 111, ¶60, 264 Wis. 2d 571, 605, 665 N.W.2d 305, 322 (“Just as a single mistake in an attorney’s otherwise commendable representation may be so serious as to impugn the integrity of a proceeding, the cumulative effect of several deficient acts or omissions may, in certain instances, also undermine a reviewing court’s confidence in the outcome of a proceeding.”).

TPR – “Incarcerated Parent” Instruction

One of the grounds for termination was “failure to assume parental responsibility,” § 48.415(6); the jury was instructed, in part: “In determining whether an incarcerated parent has or does not have a substantial parental relationship with his child in addition to the considerations indicated in other parts of this instruction, you may consider the following factors and all other evidence bearing on this issue, … and the reason Michael K[.] was not available physically to establish a parental relationship with Zachary R[.] K[.] and whether it was a result of Michael K[.]’s arrests, bond and convictions caused by his own conduct,” ¶16. Michael K. argues that this instructional language creates an illicit presumption that he did fail to assume a parental relationship; the court rejects the argument: “It does no such thing—clearly, an incarcerated parent cannot, by the very nature of being locked up, be “available physically to establish a parental relationship.”[3]  The instruction correctly told the jury how to assess Michael K.’s periodic incarceration in light of all the other appropriate factors,” id.

TPR – Review – Grounds 

Father’s challenge to abandonment ground (because the pertinent period of time was improperly expanded) need not be reached, in view of concededly sufficient proof of parental-responsibility ground:

¶19      As we have seen, however, the jury also determined that Michael K. did not “assume parental responsibility for Zachary,” and Michael K. does not dispute that there was sufficient evidence to support the parental-responsibility verdict answer.  There need be only one finding that there are grounds to assess whether termination is in a child’s best interests.  See Wis. Stat. § 48.415 (“Grounds for termination of parental rights shall be one of the following:”) (emphasis added).  Accordingly, the jury’s finding that Michael K. had not established a parental relationship with Zachary was sufficient for the trial court to move to the best-interests phase.  We thus leave for another day the dispute over the requisite specificity required in a petition alleging abandonment and what the jury should be told.  See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be addressed).  State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the “narrowest possible ground”).

This is, at bottom, a problem of harmless error: how do you analyze an instructional problem when one judgment-supporting theory is problematic but another isn’t? At one time, the operative rule “requires a verdict to set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected,” State v. Crowley, 143 Wis.2d 324, 422 N.W. 2d 847 (1988). In other words, A conviction an invalid instructional theory embedded in a general verdict was structural error. No more. Now, such an error is subject to traditional harmless-error analysis,  Hedgpeth v. Pulido, 555 U.S. 57 (2008); State v. Sveum, 2009 WI App 81, ¶59, 319 Wis.2d 498, 769 N.W.2d 533. That said, it is hardly an answer to a Pulido-type argument that the evidence was sufficient to support the judgment – which requires viewing the record in the light most favorable to the judgment – therefore the error must be harmless – which should require asking whether there is a reasonable possibility that the error contributed to the conviction, State v. Anderson, 2006 WI 77, ¶114, 291 Wis. 2d 673, 717 N.W.2d 74.

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